Bledsoe v. Biggs Unified School Dist.
Filed 1/12/09 Bledsoe v. Biggs Unified School Dist. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
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VERNON LANE BLEDSOE et al., Plaintiffs and Appellants, v. BIGGS UNIFIED SCHOOL DISTRICT, Defendant and Respondent. | C058222 (Super. Ct. No. 141120) ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] |
THE COURT:
It is hereby ordered that the opinion filed herein on December 23, 2008, be modified as follows:
At the end of the last paragraph on page 21, after the sentence ending supplement the other evidence of their qualifications, add as footnote 11 the following footnote, which will require renumbering of the subsequent footnote:
11 In their petition for rehearing plaintiffs assert we have failed to note all of their objections and have read other of their hearsay objections too narrowly. We disagree. Contrary to their claim, plaintiffs did not make a general hearsay objection to all of the Districts evidence of the qualifications of Gates and Sormano at any point in these proceedings. Plaintiffs objected specifically to use of the prior administrative decision and to Lights testimony regarding the qualifications of Gates, but never objected to admission and consideration of the seniority list or Lights testimony regarding Sormano. Moreover, even if we were broadly to construe plaintiffs objections to Lights testimony regarding Gates to encompass an objection to his testimony regarding Sormano, it would not preclude such evidence being considered, along with the prior administrative decision, for the purpose of supplementing the other evidence on this point. ( 11513, subd. (d).)
Plaintiffs argue against this conclusion, contending objection is not necessary to preclude the use of hearsay to support a finding. Plaintiffs primarily rely on McNary v. Department of Motor Vehicles (1996) 45 Cal.App.4th 688, 696 (McNary), and 9 Witkin, California Procedure (5th ed. 2008) Administrative Proceedings, section 111, page 1238. With respect to its comments on hearsay evidence, McNary has been superseded by the amendment of section 11513 and is no longer good law. (Dibble v. Gourley (2002) 103 Cal.App.4th 496, 503, overruled on another ground in MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 158-159.) Witkin continues to cite McNary for the proposition that [a]n objection to improper evidence introduced in an administrative proceeding need not be raised to preserve the issue for judicial review. (9 Witkin, supra, 111, p. 1238, italics added.) If the only basis for objection to evidence is hearsay, it is no longer improper evidence under section 11513, subdivision (d).
Government Code section 68081 does not require us to grant rehearing to allow the parties to brief these points as these issues were fairly included by the issues raised by the parties briefs. (People v. Alice (2007) 41 Cal.4th 668, 677.)
There is no change in the judgment. Appellants petition for rehearing is denied.
BY THE COURT:
BLEASE , Acting P. J.
RAYE , J.
CANTIL-SAKAUYE , J.
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